State v. Cerbo

• Decision Date: 02 February 1979
• Citation: 397 A.2d 671,78 N.J. 595
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John CERBO and John Benevento, Defendants-Appellants
• Court: New Jersey Supreme Court

Page 595

78 N.J. 595

397 A.2d 671

STATE of New Jersey, Plaintiff-Respondent, v. John CERBO and John Benevento, Defendants-Appellants.

Supreme Court of New Jersey

Argued Sept. 26, 1978.

Decided Feb. 2, 1979.

Susan Slovak, Asst. Deputy Public Defender, for defendants-appellants (Stanley C. Van Ness, Public Defender, attorney).

William F. Lamb, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

The opinion of the court was delivered by

HANDLER, J.

This case raises the question of whether defendants are entitled to post-conviction relief under R. 3:22-4 based upon a violation by the State of the sealing requirements of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 Et seq.

On March 14, 1973, defendants John Cerbo and John Benevento, and another defendant Michael Centrone, who is not involved in this appeal, were indicted by a Bergen County Grand Jury on multiple counts of bookmaking in violation of N.J.S.A. 2A:112-3 and for conspiracy to violate gambling laws in violation of N.J.S.A. 2A:98-1 and 2. The evidence which led to their convictions was obtained through a court authorized wiretap placed upon the home telephone of defendant Centrone pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1, Et seq. (Wiretap Act).

The procedural history of this case is rather convoluted. Prior to trial, defendants Cerbo and Benevento moved unsuccessfully to suppress the evidence obtained from the wiretap. The motion was based upon an asserted violation of N.J.S.A. 2A:156A-14, which requires the transfer and sealing of tapes by the issuing judge immediately upon the completion of the wiretap. Following a long jury trial, defendants were found guilty on all counts. A subsequent motion for a new trial was denied and on July 19, 1974 defendants Cerbo and Benevento were each sentenced to the State Prison for terms aggregating two to four years and fines totalling $2,000. An appeal was taken but defendants neglected at that time to raise the denial of their pretrial motion to suppress the wiretap evidence. The convictions and sentences were affirmed in a reported opinion, State v. Benevento, 138 N.J.Super. 211, 350 A.2d 485 (App.Div.1975). Defendants' petition for certification was denied on April 1, 1976. State v. Cerbo, 70 N.J. 276, 359 A.2d 488 (1976).

On April 28, 1976, defendants filed applications for Habeas corpus relief in the United States District Court for the District of New Jersey. That court, in an unreported opinion, dismissed defendants' applications on the ground that they had not exhausted their State remedies in view of the availability of a petition for post-conviction relief under R. 3:22-4. During the pendency of the Habeas corpus applications, defendants moved in the State court for a reduction of their sentences, as a result of which Benevento's sentence was reduced to a term of one to two years but Cerbo's was not. On June 10, 1977, the Appellate Division, in an unreported opinion, affirmed the denial of defendant Cerbo's motion for a reduction of sentence and this Court denied his Pro se Petition for certification on September 27, 1977. 75 N.J. 531, 384 A.2d 510 (1977).

Following the dismissal of their Habeas corpus applications in the federal district court, defendants applied to the trial court for post-conviction relief under R. 3:22-4. These applications were denied on September 23, 1976 and defendants were ordered to begin serving their respective sentences in State Prison. A notice of appeal from this denial of post-conviction relief was filed by defendant Cerbo on October 18, 1976 and later amended to include defendant Benevento. On July 25, 1977, the Appellate Division, in a reported opinion, affirmed the denial of post-conviction relief. State v. Cerbo, 152 N.J.Super. 30, 377 A.2d 755 (1977). There being a dissent, a notice of appeal as of right was filed with this Court on September 8, 1977 under R. 2:2-1(a) (2).

We affirm the judgment of the Appellate Division sustaining the denial of defendants' petitions for post-conviction relief. The grounds advanced by defendants for post-conviction relief were not previously raised in their initial appeal from their judgments of conviction. There appears no basis for finding that these grounds "could not reasonably have been raised" before or that the denial of relief on such grounds would result in "fundamental injustice" or a deprivation of constitutional rights. R. 3:22-4. Post-conviction relief was therefore properly withheld.

We do not, however, subscribe to the conclusions of the majority of the Appellate Division that the provisions of N.J.S.A. 2A:156A-14 for the transfer and sealing of a completed wiretap tape were ministerial and that the failure of the investigating police officers to have turned over the completed wiretap tapes immediately to the issuing judge for such sealing was merely a technical violation of the Wiretap Act which would not justify barring their use as evidence at the criminal trial of defendants. Had defendants raised this issue in their prior appeal from their judgments of conviction, a reversal would have been warranted. On this facet of the case, we endorse generally the reasoning expressed in the dissenting opinion of Judge Antell. Notwithstanding our decision to deny post-conviction relief for the reasons indicated, because of the prominence which the violation of N.J.S.A. 2A:156A-14 has assumed in the disposition of the post-conviction appeal, some further comment with respect to this issue and its impact upon defendants' entitlement to post-conviction relief is warranted.

I

The gravamen of the petitions for post-conviction relief and this appeal was the failure of the law enforcement officers who were responsible for effectuating the court authorized wiretap to comply with the statutory requirement that immediately upon the completion of the wiretap the tapes be transferred to the issuing judge and sealed under his supervision.

N.J.S.A. 2A:156A-14 imposes this obligation, Viz :

Immediately upon the expiration of the order or extensions or renewals thereof, the tapes, wires or other recordings shall be transferred to the judge issuing the order and sealed under his direction. * * * The presence of the seal provided by this section, or satisfactory explanation for its absence, shall be a prerequisite for the disclosure of the contents of any wire or oral communication or evidence derived therefrom, under subsection b of section 17 of this act.

The reference to section 17 of the Wiretap Act, N.J.S.A. 2A:156A-17(b), makes it clear that the contents of a wiretap that has been handled in violation of N.J.S.A. 2A:156A-14 shall be inadmissible for purposes of evidence at a criminal trial.

The State does not dispute that the tape recordings were not immediately sealed upon the expiration of the wiretap. It has been held that a delay in sealing the tapes of a completed wiretap is equivalent to the absence of a seal. United States v. Gigante, 538 F.2d 502, 506 (2 Cir. 1976) (construing the sealing provision, 18 U.S.C. § 2518(8)(a), contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 Et seq., which provision is virtually identical to N.J.S.A. 2A:156A-14); Accord, United States v. Ricco, 566 F.2d 433 (2 Cir. 1977), Cert. den. 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978). Since the delay in sealing is tantamount to the absence of a seal under N.J.S.A. 2A:156A-14, the statutory requirement that there be a satisfactory explanation for such "absence" is applicable to the delay in sealing.

The State maintains that there was a satisfactory explanation for the delay in this case. Its reasons for the 33-day lag in sealing were its need to make a composite of relevant conversations, the fact that the investigator in charge was involved in other investigations at the time and the "tremendous" amount of paperwork after the completion of the wiretap. We agree with the reasoning of Judge Antell that these circumstances do not constitute a satisfactory explanation for the tardiness in the sealing of the tapes. 152 N.J.Super. at 37-38, 377 A.2d 755.

The plain and clear language of section 14 of the Wiretap Act requires that if the transfer and sealing requirements are not met, the contents of the wiretap tape and its evidential by-products cannot be used in evidence. The final sentence of N.J.S.A. 2A:156A-14 provides that "(t)he presence of the seal provided by this section, (that is, the affixing of the seal immediately upon the expiration of the wiretap order), or a satisfactory explanation for its absence, shall be a prerequisite for the disclosure of the contents of any wire or oral communication * * * ." Therefore, N.J.S.A. 2A:156A-14 by its terms mandates the barring of admissibility in evidence of the contents of wiretap recordings if they have not been sealed "immediately" and there is no "satisfactory explanation" for the delay. Cf. N.J.S.A. 2A:156A-21, as amended L.1975, C. 131, § 10 (on a motion to suppress for particular violations of the Wiretap Act, All evidence derived from intercepted wire communications shall be suppressed).

It cannot be overstressed that the transfer and sealing requirements of N.J.S.A. 2A:156A-14 are an important component of the protective measures governing the conduct of wiretapping under the Wiretap Act. The significance of these particular safeguards is to be appreciated in the broader protective framework structured by the Wiretap Act, which calls for court involvement in and continuing judicial supervision of all aspects of wiretapping and electronic surveillance. United States v. Marion, 535 F.2d 697, 698 (2 Cir. 1976) (the federal act, comparable in material respects to the New Jersey Wiretap Act, "ensure(s) careful judicial scrutiny throughout" the interception and use of resultant evidence). Judicial...